Net Neutrality in the EU: The devil is in the loopholes

The term net neutrality was coined by Tim Wu, a Columbia Law School professor, in his 2005 paper ‘Network Neutrality, Broadband Discrimination’. It is the notion that all data flowing over the internet should be treated the same way, no matter what source they come from, what kind of information they transmit and who is the recipient.

Mr Wu – and other proponents of the principle – argue that this feature has been instrumental to the rapid innovation we have witnessed on the internet, and that without it, innovation, competition and even freedom of speech could suffer.

Internet providers claim they need to be able to manage what data is being transmitted at what rate in order to ensure quality of service (heavy-load services like Netflix, YouTube or bittorrent sharing make up a large part of overall internet traffic), but net neutrality advocates say network congestion is not a real problem and that the main motivation of internet providers is their wish to grab their share of profits made online. Standing between content providers and consumers, they could charge both.

Still, the Council found it important to recognise in its 2011 statement on net neutrality that ‘broadband networks and the Internet have been deployed mainly by the private sector in a competitive market.’ Should not private companies be able to do whatever they want with the networks they built, including charging at will?

The idea that access should be unrestricted is linked to the notion of the internet as a public good and internet access as a right. Whether or not the internet fits the traditional definition of a public good, it has gained such an important role for society that it is crucial for democracy – a blatant proof of this are the attempts to restrict internet access by authoritative regimes around the world – and open internet has proved to foster competitiveness, economic growth, social development and innovation.

The freedom to conduct a business is never completely unrestricted. Businesses making money out of important resources and services indeed operate under strict regulations – and given the importance of the internet, so should internet providers.

What is the Commission proposing

The European Commission’s initiative for the Telecom’s Single Market seeks to remove barriers to internet and mobile communication and given the general consensus on net neutrality expressed by the EU institutions, it should also enshrine the principle. This would probably be the first case of net neutrality being defined and protected by law in the world.

The proposed Regulation for a single market for electronic communications, the most recent proposal under the EU’s Digital Single Market agenda, claims to be addressing the issue by defining the obligation for providers ‘to provide unhindered connection to all content, applications or services being accessed by end-users – also referred to as Net Neutrality’.

However, net neutrality advocates are not entirely content with the proposal. Although they welcome its general aim, they claim it contains several loopholes which could be used by internet providers to introduce (or continue) net discrimination.

One of the possible loopholes lies in paragraph 5 of Article 23:

‘Within the limits of any contractually agreed data volumes or speeds for internet access services, providers of internet access services shall not restrict the [user’s freedoms] by blocking, slowing down, degrading or discriminating against specific content, applications or services…’

Access, one of the NGOs behind the Save the Internet campaign (savetheinternet.eu), argues that this would allow internet providers to continue discriminatory practices as long as they are transparently included in the contract. In a situation where for many customers the choice of their broadband provider is limited (in many areas it is only a single phone company), this would undermine the policy aim.

Another problem is the definition of ‘specialised service’, which, according to Access, would also allow providers to impose extra charges for transmitting ‘specialised services’- allowing companies to distinguish between lower- and higher priority traffic (e.g. privileging IPTV over machine-to-machine communications) helping to better control network traffic.

State of play

The Commission’s proposal is currently being reviewed by the committees in the European Parliament and will be voted on 24 February in the lead Industry and Energy Committee (ITRE). Although there is not much time left before the end of this Parliament’s term, the plan is to finish the legislative process in time, which will require quick trilogue negotiations in March so that the compromise can be voted upon in the EP plenary in the beginning of April.

So far the votes in opinion committees and the Internal Market Committee (IMCO) (which is in this case an ‘associated committee’, putting it roughly on par with ITRE) give net neutrality advocates reasons for optimism. IMCO and the Culture and Education Committee (CULT) have suggested amendments which would close some of the legal loopholes. However, the Legal Affairs Committee (JURI) has been criticised for leaving loopholes and vague definitions or replacing them with new ones.

However, as many of these proposed amendments are contradictory, the vote in ITRE will be still critical. In terms of positions of the different parties, there is a clear support for net neutrality from the Greens (including Jan Philipp Albrecht (LIBE), the rapporteur for data protection) and a number of ALDE MEPs, although ALDE’s shadow rapporteur Jens Rohde (DK) has been rather passive on the issue. As the EPP rapporteur Pilar del Castillo Vera (ES) has not been open to amendments which would clearly protect net neutrality, the position of S&D MEPs is likely to be decisive. (See a detailed overview by Miriam Artino of La Quadrature du Net).

This debate in Europe comes at a time when a US federal court ruled in favour of Verizon, which had argued that net neutrality as enforced by the Federal Communications Commission (FCC) infringed upon its right to freedom of expression by losing control over data being transmitted in its networks. (See coverage by The Verge.) Although the FCC still has some room for manoeuvre (reclassifying broadband internet as a telecommunications carrier, a technical move which would draw criticism), the fate of net neutrality in the US is endangered. It is now up to the EU whether it will set an important precedent for other parts of the world.